“Every reform movement has a lunatic fringe.”
― Theodore Roosevelt

The U.S. Department of Labor (“DOL”) recently sent around an email soliciting “feedback” from interested parties about the Davis-Bacon Act (“DBA”). The inquiry references a Spring 2021 “Davis-Bacon Initiative (DBI21).” This is the first time I heard of the initiative. Presumably, DOL is acting at the behest of the building and & trades union to “reform” portion of the Act to make them more favorable to workers and organized labor, as if the Act was not already tilted in that direction. Be that as it may, this is a chance to ask DOL to fix some of the ambiguities or inanities in the law and regulations.

Below is the DOL email I received on November 8, 2021:

Have feedback about the Davis-Bacon program?

As you know, the Wage and Hour Division (WHD) of the US Department of Labor is responsible for enforcing many of the nation’s most fundamental worker protection laws including the minimum wage, overtime, child labor, family and medical leave, and the prevailing wages for government services and construction contracts. In the Spring of 2021, we launched the Davis-Bacon Initiative (“DBI21”) to engage in a holistic and comprehensive review of the Davis-Bacon program.

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DBI21 objectives are to modernize the Davis-Bacon and Related Act regulations, improve the survey process and participation, publish accessible wage determinations, increase effective outreach and training, and conduct full and fair enforcement of the law. But fully achieving such objectives requires your participation – we want to listen and learn from you on what you think is currently working with our Davis-Bacon program and what needs to be improved. Therefore, your feedback is paramount to making this an improved program.

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We are interested in your feedback! Please visit our website to learn more about the initiative and share your thoughts with us at DBfeedback@dol.gov.

And here is the feedback I sent to DBfeedback@dol.gov:

To whom it may concern:

I am following up on the Department of Labor’s invite to submit “feedback” on the Davis-Bacon Act (“DBA”). I am writing in my personal capacity and not as a representative of any client or association. I am a private attorney with 38 years of experience involving Davis-Bacon Act issues. I have been teaching a Davis-Bacon Act seminar several times a year since 1986. I have represented employers, employees, and been an expert witness or counsel to the US Government in various wage and hour disputes. I consider myself a neutral observer. Recently, I have been blogging about various wage and hour topics at www.awrcounsel.com/blog. I think my website now has more wage and hour materials than you can find at DOL’s website or any other online resource.

The following is my feedback on the DBA along with references to recent blogs on these same subjects that further explains my thinking:

·       Fix the Davis-Bacon Act (“DBA”) conformance process when only one wage rate is on the wage determination(“WD”) . The instructions in All Agency Memorandum (“AAM”) No. 213 lead to absurd results when the WD issued only has one rate on it and it is for a different job classification involving skilled labor and unionized workers. See https://www.awrcounsel.com/blog/2018/5/14/we-need-new-davis-bacon-act-conformance-procedures?rq=Conformance.

·       Clarify the hybrid contract situation with DBA drilling vs. Service Contract Act (“SCA”) drilling when contract scope of work overlaps. Again, FOH 15d05 leaves some ambiguity as to when drilling is service vs. construction work. Drilling under environmental remediation contracts  of holes which are used exclusively for remediation work should not be covered by DBA since the contracts have a principal purpose of services and not construction and there is no public work. See https://www.awrcounsel.com/blog/2020/5/8/drill-baby-drill-overlapping-coverage-of-drilling-work-under-the-service-contract-act-and-davis-bacon-act?rq=%20Drill%2C%20Baby.

·       Add a suggested flow down clause to be used  by prime and higher tier subcontractors. See https://www.awrcounsel.com/blog/2021/7/20/dont-be-a-bag-holder-be-proactive-on-subcontractor-prevailing-wage-compliance?rq=Davis-Bacon.

·       Keep the 50% rule for dominant union CBA rates.

·       Clarify back wage order retroactivity. See https://www.awrcounsel.com/blog/2019/2/26/must-dol-always-seek-payment-of-sca-and-dba-back-wages?rq=DBA.  The agency should not automatically be assessing back wages going back two or more years. The policy should be more nuance and factors to be consider should be set forth in new rules.

·       Require DOL investigators to clarify entries in the DOL computer database for contractors who make back wage payments due to contracting agency errors. It is wrong to put wage and hour violations in your database or issue press releases vilifying contractors for back wage payments when they have no culpability for the situation. If the contracting agency failed to add the DBA to the prime contractor add the proper wage determination, then the contractor is innocent of wrong-doing, and it deserves to be better treated by DOL as it accommodates the DOL back wage directives and seeks a price adjustment from the contracting agency. I had a situation where DOL acted abusively towards an innocent client and then issued a press release tarring and feathering them, when they did nothing wrong and cooperated fully in making back wage payments in a contract that had omitted the proper wage and hour clauses. 

I might think about this some more and furnish additional input. Today’s email was the first time I was aware of this Spring 2021 Initiative.

Respectfully submitted,